Wind turbines in Dixfield atop a ridge south of Webb Lake. Gov. LePage's moratorium order is being challenged. Staff file photo by Gabe Souza

AUGUSTA — Maine’s wind energy industry is challenging the constitutionality of a recent LePage administration executive order imposing a moratorium on new wind power permits across much of the state.

In a filing in Kennebec County Superior Court, the Maine Renewable Energy Association accuses Gov. Paul LePage of “unconstitutional executive overreach in creating a moratorium of indefinite duration that is contrary to the will of the Legislature.” The association, a trade group representing wind energy companies and contractors, is asking the court to nullify the Jan. 24 executive order that halted the issuance of new wind power permits and created a secretive advisory commission to explore potential changes to the permitting process.

“While the governor may not support wind power, no executive authority exists for him to arbitrarily decide which industries and their permit applications may be afforded a comprehensive regulatory review,” Jeremy Payne, executive director of the Maine Renewable Energy Association, said in a statement. “Our Constitution clearly lays out the separation of powers between our co-equal branches of government, and this order directly contradicts that separation.”

LePage’s spokeswoman said her office cannot comment on pending litigation. But in announcing the executive order last month, the governor said steps were necessary to protect Maine’s scenic beauty from “out-of-state interests … eager to exploit our western mountains in order to serve their political agendas.”

“I am placing a moratorium on issuing any new permits related to wind turbines until this commission studies the economic impact that such development would have on tourism in Maine,” LePage said at the time. “Tourism, especially returning visitors, is a major driver for the Maine economy. We cannot afford to damage our natural assets in ways that would deter visitors from returning to Maine.”

This is the second lawsuit challenging LePage’s executive order on wind power. The Massachusetts-based Conservation Law Foundation also filed suit in Cumberland County Superior Court, claiming the administration’s actions violate the constitutional separation of powers.

LePage is a vocal critic of the wind energy industry and Maine’s environmental organizations. His order prohibits state agencies from issuing wind turbine permits in western and coastal Maine, on coastal islands and along “significant avian migratory pathways.”

The order also created a Wind Energy Advisory Commission to examine the industry’s impact on tourism and potential regulatory changes when siting the massive wind turbines. But LePage also explicitly exempted the commission from Maine’s public meetings and public records law – thereby allowing the group to meet out of view of Maine residents and the news media – by using a loophole in the Freedom of Access Act that was rarely used until he took office.

In its filing, the Maine Renewable Energy Association contends the executive order illegally aims to undermine wind energy regulations passed by the Legislature. The association also predicts the moratorium – which will remain in place until the advisory commission issues a final report – will cause economic harm to the industry.

“There is a substantial risk that the moratorium will prevent or delay the issuance of required permits for wind energy projects in development by MREA members, and that such delay will result in the loss or reduction of financial incentives, including tax credits, for those projects,” reads the legal complaint. “The moratorium will also harm the economic interests of MREA’s members who would support and supply goods and services to the wind projects banned by the moratorium.”

Others, however, have cheered the governor’s moratorium against an industry they view as despoiling Maine’s mountains and causing health problems for neighbors in order to generate subsidized power for southern New England states. Industry critics also support a separate LePage proposal to gut the streamlined permitting process they say reduces the input of property owners affected by wind power projects, especially those located in the Unorganized Territory.

The LePage administration has proposed legislation that would eliminate the “expediting permitting” process except in parts of Aroostook County while subjecting more projects to visual impact studies. Those expedited rules were adopted during the administration of Democratic Gov. John Baldacci – a vocal supporter of wind power – and been in place for wind power’s decade of rapid growth in Maine.

As of last year, Maine had 378 wind turbines with a maximum generation capacity of 901 megawatts, more than all other New England states combined.

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